Administrative Code chapters NR: 1, 2, 19, 44, 48, 52, 60, 103, 107, 108, 110, 113, 126, 128, 131, 132, 133, 134, 162, 166, 182, 191, 200, 243, 299, 300, 305, 310, 327, 345, 347, 406, 410, 489, 512, 670, 700-754, 820, and 852.
5. Plain language analysis:
Chapter NR 150 was revised and went into effect April 1, 2014. An emergency rule was approved by the Natural Resources Board in August 2014 and is set to expire May 27, 2015. A revised scope statement was approved by the Governor on December 11, 2014 and approved by the Natural Resources Board on February 25, 2015. The purpose of the proposed permanent rule is to clarify the procedures for the review and analysis of new administrative rules in order to assure that the intent of the ch. NR 150 revision is being met and potential procedural questions do not invalidate the years of work and public engagement on new rules packages, and for additional housekeeping changes to ensure that the intent of the recent ch. NR 150 rewrite is being met all in a manner that is consistent with past WEPA compliance approaches that have been upheld by the courts. The proposed rule clarifies that emergency rules are “minor actions”, requiring no additional environmental analysis, and that the process for developing permanent rules is an “equivalent analysis action.” The April 2014 revision of the rule was not perfectly clear to this point.
Procedures for WEPA compliance determinations and publication requirements have been clarified.
This proposed permanent rule includes clarification changes regarding strategic analysis requirements. Consistent with the intent of the current rule, the rule clarifies that a strategic analysis is required for review of significant policies, but for other policies or issues the strategic analysis may be used as a discretionary tool.
The list of minor actions, not requiring additional environmental analysis, has been expanded to include actions that originally were intended to be outlined in program guidance. The April 2014 version relied on reference to “routine and small-scale” permits or approvals as a catch-all category for minor actions that would be listed in guidance and reviewed by the public through the guidance review process. The revision in this proposed permanent rule clarifies by rule the list of activities that are minor actions.
The list of equivalent analysis actions, for which a detailed environmental analysis and public disclosure are already conducted as part of department programmatic procedures, has been expanded and amended to provide additional clarity on actions covered under this subsection.
The list of prior compliance actions, for which one or more environmental analysis documents exist for similar prior actions, has been expanded to provide additional clarity on actions covered under this subsection.
6. Summary of, and comparison with, existing or proposed federal statutes and regulations:
The 1970 Wisconsin Environmental Policy Act (WEPA) and s. 1.11, Stats., were modeled after the federal National Environmental Policy Act (NEPA) of 1969. NEPA created the Council on Environmental
Quality (CEQ), which established guidelines and regulations to implement the Act. As with other state
agencies' WEPA rules, ch. NR 150 and these clarifying provisions are based in part upon the federal CEQ guidelines. This proposed revision of ch. NR 150 will remain substantially consistent with the CEQ guidelines as required under s. 1.11 (2) (c), Stats. 7. Comparison with similar rules in adjacent states (Illinois, Iowa, Michigan and Minnesota):
Neighboring states have significant differences in their related laws, so the opportunity to gain from their experience is limited. For example, Minnesota requires that counties also follow WEPA-like analysis procedures, whereas Wisconsin counties have no such requirements. Illinois' law covers only actions conducted by the state itself, whereas in Wisconsin, WEPA applies to all actions by other entities that are subject to state approvals.
8. Summary of factual data and analytical methodologies used and how any related findings support the regulatory approach chosen: Department of Natural Resources staff obtained the input of an internal team of staff from several department programs, building on the prior review of relevant WEPA case law and federal CEQ regulations.
9. Analysis and supporting documents used to determine the effect on small business or in preparation of an economic impact report: Chapter NR 150 is an administrative process rule that applies internally to the department, so impacts to businesses are minimal. 10. Effect on small business (initial regulatory flexibility analysis):
There will be no impact to small business as a result of this rule revision. This proposed permanent rule will benefit small businesses to the extent that they clarify any ambiguity of the intent of the rule, as presented to the public and approved by the NRB.
11. Agency contact person:
Jim Pardee
Phone: (608) 266-0426 or (608) 316-0999
12. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearings, by regular mail, fax or email to:
Jim Pardee (OB/7)
Department of Natural Resources
Bureau of Energy, Transportation and Environmental Analysis
101 S Webster St, Madison, WI 53703
SECTION 1. NR 150.02 (Note) is created to read:
NR 150.02 (Note) There are several statutory exemptions from s. 1.11, Stats., including the following: s. 30.025, Stats. (construction of certain high voltage transmission lines); ss. 160.23 and 160.25, Stats. (responses to groundwater standards exceedances); s. 283.93, Stats. (WPDES permit actions, except for WPDES permit actions for new sources); s. 285.60(2g)(b) and (3)(b), Stats. (air registration permits and general permits); and ss. 295.44, 295.45, 295.65, and 295.645, Stats. (ferrous mining exploration licenses, bulk sampling approvals, successor operators, and responses to groundwater standards exceedances). The department may have previously conducted environmental analyses under s. 1.11 Stats., for actions that are exempt under s. 283.93, Stats., even though the department was not statutorily required to do so. SECTION 2. NR 150.03 (1), (10), (11), and (15) (intro.) are amended to read:
NR 150.03 (1) “Action” means any final decision by the department to exercise the department’s statutory or administrative rule authority that affects the quality of the human environment including those identified in s. NR 150.20 (1m) to (4), but does not include policies as defined in sub. (19). NR 150.03 (10) "Equivalent analysis" means department programmatic procedures that include an environmental analysis that complies with s. 1.11 (2) (c), Stats., and provide for public disclosure and comment. (11) "Facility development or removal" has the meaning in s. NR 44.03 (7) means the construction or removal of infrastructure, including dams, buildings, roads, and trails for resource management, public use, or other purposes. (15) (intro.) “Minor action” means a department action that does not need to comply with s. 1.11 (2) (c), Stats., because it is not in conflict with local, state or federal environmental policies and is not likely to do any of the following: SECTION 3. NR 150.03 (16m) and (17m) and (Note) are created to read:
NR 150.03 (16m)“Natural resource management, timber management or environmental restoration” includes all actions associated with the management, economic production, protection and restoration of native and non-native fish, game, plants, trees, and timber, habitat protection, habitat management, habitat restoration, silvicultural practices, forest inventory, chemical and mechanical site preparation, timber harvesting, timber sales, timber transporting, tree planting, direct seeding, forest type conversions, invasive species control, timber stand improvement activities, forest nursery operations, prescribed burning, fire prevention, fire detection, fire suppression, rehabilitation of fire burned areas, environmental remediation, fish hatchery operations, state game farm operations, pesticide or herbicide applications and field surveys for environmental protection.
(17m) “New source” has the meaning given in s. 283.01(8), Stats. Note: Section 283.01(8), Stats., defines “new source” to mean any point source the construction of which commenced after the effective date of applicable effluent limitations or standards of performance. SECTION 4. NR 150.03 (19) is amended to read:
NR 150.03 (19) "Policy” means a written plan or set of guiding principles, priorities, or protocols to guide department action that has been enacted as a statute, promulgated as an administrative rule, issued as a department manual code, or approved in writing by the natural resources board or the department secretary, but does not include actions as defined in sub. (1).
SECTION 5. NR 150.03 (23m) is created to read:
NR 150.03 (23m) “Publicly announce” or “public announcement” means publication on the department’s internet web site, or other reasonable methods to provide public notice.
SECTION 6. NR 150.03 (25) and (26) are amended to read:
NR 150.03 (25) “Strategic analysis” means an environmental and alternatives analysis of any an issue or policy which involves unresolved conflicts concerning alternative uses of available resources, within the meaning of s. 1.11 (2) (e), Stats. (26) “Unresolved conflicts concerning alternative uses of available resources” means an unsettled disagreement between experts, policymakers of local, state, or tribal governments, or citizen interest groups in Wisconsin concerning a department policy affecting the utilization of a substantial natural resources, between experts, policymakers of local, state, or tribal governments, or citizen interest groups in Wisconsin or physical resource where the utilization would be of sufficient magnitude that on a statewide or regional basis would have a considerable and important impact to the natural resources of the state. To be considered an unresolved conflict concerning alternative uses of available resources, the disagreeing parties must have identified a technically and economically feasible alternative use of the contested physical or natural resource, or both, and have the ability to reasonably implement that alternative.
SECTION 7. NR 150.10 (1) and (1m) (a) are amended to read:
NR 150.10 (1) GENERAL REQUIREMENT PURPOSE. Pursuant to This section establishes the procedures to fulfill the requirements of s. 1.11 (2) (e) and (h), Stats., the department shall study, develop, and describe alternatives for natural resource issues or policies which involve unresolved conflicts concerning alternative uses of available resources. (1m) (a) Administrative rules and manual codes Policies. The department shall conduct a strategic analysis for all new or revised administrative rules and manual codes policies if both of the following apply:
